COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59126 TURTLE ENTERPRISES, et al : : Plaintiff-appellees : : JOURNAL ENTRY vs. : and : OPINION ALLAN E. LIEBOWITZ, et al : : Defendant-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 10, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 145,052 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellees: GARY S. FISHMAN Attorney at Law 75 Public Square, Suite 512 Cleveland, Ohio 44113 For defendant-appellants: MARC N. SILBERMAN Attorney at Law 1050 Statler Office Tower 1127 Euclid Avenue Cleveland, Ohio 44115-1695 - 1 - FRANCIS E. SWEENEY, J.: Defendants-appellants, Allan Liebowitz, Commodore Realty Associates, and Commodore Realty, Inc., timely appeal from the trial court's granting of plaintiff-appellees' motion for summary judgment and denial of appellants' partial motion for summary judgment. For the following reasons, we affirm the judgment of the trial court. The pertinent facts are as follows: On January 1, 1981, appellants and appellees executed a promissory note which listed appellants, Commodore Realty Asso- ciates, Ltd. and Allan E. Liebowitz, as makers and appellees, Turtle Enterprises, Thomas C. Norton, Patricia A. Norton, Thomas J. Moore, Sandra D. Moore and Dominic Ozanne, as payees. The sum agreed upon was one hundred thousand dollars plus interest to be paid in monthly installments. The full amount was due and pay- able by January 5, 1986. On or about February 21, 1986, appellees re-negotiated the promissory note with appellants by a letter, which stated in part: "This letter summarizes the details of an agreement between Tom Norton on behalf of Turtle Enterprises and your client Allan Liebowitz to modify the repayment terms of the - 2 - above: . . ." Above this sentence, the letter referred to the original note and stated: "RE: LIEBOWITZ PROMISSORY NOTE TO TURTLE ENTERPRISES. ($100,000.00 - Dated January 1, 1981)." In this document, it was agreed that the balance due as of January 1, 1986 was eighty thousand dollars. The remainder of the docu- ment stated the new terms of repayment and was signed by Allan E. Liebowitz. Appellees filed a complaint to enforce the note as a result of appellants' subsequent default on the note. Appellants con- tend their obligation on the promissory note was discharged by the modification of the document under the doctrine of novation. The trial court granted appellees' motion for summary judgment and awarded appellees the sum of $89,892.58 plus interest at ten percent per annum. The trial court denied appellants' cross-motion for partial summary judgment. Appellants now timely appeal, raising three assignments of error for our review. ASSIGNMENT OF ERROR I THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANTS' MOTION FOR PARTIAL SUMMARY AND GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED WHEN IT GRANTED APPEL- LEES' MOTION FOR SUMMARY JUDGMENT BECAUSE IT FAILED TO RECOGNIZE NOVATION AS A VALID DEFENSE. - 3 - ASSIGNMENT OF ERROR III THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RENDERED JUDGMENT AGAINST COMMODORE REALTY LTD. ASSOCIATES AND COMMODORE REALTY UNDER THE NEW AGREEMENT. In Assignments of Error I, II and III, appellants argue the trial court erred when it granted appellees' motion for summary judgment and denied appellants' cross-motion for partial summary judgment. Specifically, appellants argue their obligation on the original note was discharged as a result of a novation. This argument is without merit. Civ. R. 56 provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and, viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Petrey v. Simon (1984), 19 Ohio App. 3d 285. A novation is an agreement whereby the parties mutually consent to the extinguishment of their rights and obligations under an existing contract by the substitution of a new contract therefor. Federal Land Bank of Louisville v. Taggart (1987), 31 Ohio St. 3d 8, 13-14; The Astrup Co. v. Genie Copy Service (Mar. 14, 1991), Cuyahoga App. No. 57548, unreported. To effect a novation, "there must be a clear and defined intention on the - 4 - part of all concerned that such is the purpose of the agreement; a novation is never to be presumed." Citizens State Bank v. Richard (1984), 16 Ohio App. 3d 445. The record in the present case lacks any evidence to indi- cate that the parties intended to extinguish the old debt and substitute it with the document dated February 21, 1986. This document merely modified the repayment terms of the original note and does not demonstrate an intention of the parties to substi- tute or discharge any parties liable for the debt. Furthermore, no consideration for the substitution or discharge of parties to the note is evident from the document. Thus, the document lacks essential elements necessary to constitute a new contract. In light of these facts, we find the trial court properly rejected appellants' defense of novation and did not err in granting appellees' motion for summary judgment and denying appellants' cross-motion for partial summary judgment. Assignments of Error I, II and III are overruled. Judgment affirmed. - 5 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J. SPELLACY, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .